Madden and Callanan
[2016] FamCAFC 44
•24 February 2016
FAMILY COURT OF AUSTRALIA
| MADDEN & CALLANAN | [2016] FamCAFC 44 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against interim parenting orders – Where unless the appeal is expedited it is possible that the proceedings at first instance will be heard before the appeal can be finalised – Where the case at first instance is well advanced and will result in a determination of the contested factual matters – Whether the matter should be afforded priority to the detriment of other cases – Where the appeal is against a discretionary judgment – Application dismissed. |
| Family Law Act 1975 (Cth): s 94(2D)(j) Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Ms Madden |
| RESPONDENT: | Mr Callanan |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Longbottom (by telephone link) |
| FILE NUMBER: | WOC | 1081 | of | 2015 |
| APPEAL NUMBER: | EA | 18 | of | 2016 |
| DATE DELIVERED: | 24 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 24 February 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 January 2016 |
| LOWER COURT MNC: | [2016] FCCA 59 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell |
| SOLICITOR FOR THE APPLICANT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | TH Walker Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | DGB Lawyers |
Orders
IT IS NOTED the appeal insofar as the Notice of Appeal appeals against Order 8 of the orders dated 22 January 2016, the appeal is withdrawn.
The Application in an Appeal filed on 8 February 2016 be dismissed.
Costs of the Application for expedition will be costs in the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Madden & Callanan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 18 of 2016
File Number: WOC 1081 of 2015
| Ms Madden |
Applicant
And
| Mr Callanan |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By Application in Appeal filed on 8 February 2016 Ms Madden (“the mother”) seeks an expedited hearing of her appeal against certain interim parenting orders made by Judge Altobelli on 22 January 2016. Insofar as the Notice of Appeal indicated, there was an appeal against Order 8 of his Honour’s orders, that aspect of the appeal is abandoned.
The proceedings concern the parties’ children, a girl, X born in 2008, who is currently seven years of age and a boy, Y born in 2010, who is currently five years of age (“the children”).
The respondent to this application is the children’s father, Mr Callanan (“the father”).
In summary, the orders under appeal provide that the children spend time with the father from Monday morning until Wednesday morning each week as well as on the children’s birthdays and Christmas Day (Order 3); for the father to collect the children from the mother’s residence at the commencement of his time with the children and for the mother to collect the children from the father’s residence at the conclusion of that time (Order 4).
The children are represented by an Independent Children’s Lawyer, who appeared on this application.
In essence, the father and the Independent Children’s Lawyer do not oppose expedition, but for his part, the father says that by reference to the competing demands of cases awaiting an appeal, a case has not been made out for it, in effect, to jump the queue ahead of those people already waiting. The argument is advanced that steps ought to be taken to ensure that the proceedings at first instance are brought to a hearing as quickly as possible. The Independent Children’s Lawyer supports the idea of a prompt final hearing and makes the point that all cases concerning children are urgent and, in effect, in an ideal world, all would be able to be dealt with, whether that be at first instance or an appeal, very quickly.
Relevant background
In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from his Honour’s reasons and the documents filed in support of the application for expedition.
The parties commenced cohabitating in 2001, married in 2004 and separated on a final basis in mid 2013. Their divorce became final in early 2015. The children were almost five and three years of age when their parents separated.
It is common ground that the parties were able to parent cooperatively from the time of separation until early 2015. From July 2013 until early 2015, the children lived with the mother and spent time with the father for a minimum of two days and two nights each week, which usually occurred on Monday and Tuesday, being the days the father was not required to work. Arrangements were also made for the children to spend time with him during the school holidays.
Upon separation the father moved into his parents’ home. It appears the father resided there until he moved into his own residence on 29 May 2015. Consequently, the time the children spent with the father following separation initially took place in the home of his parents and, as the chronology I have just recounted indicates, that arrangement continued until May 2015. It follows that the children spent time with their paternal grandfather and came into contact with their paternal uncle. That is a matter that assumes some significance.
In early 2015, the mother observed the children exhibiting “sexually explicit” behaviours and they had become increasingly aggressive, they were anxious, clingy and bedwetting. This behaviour led to a number of discussions between the parties and incidents which were of concern to them both. One, for example, occurred in March 2015 at X’s school, which resulted in the mother withdrawing X. It appears the incident that so concerned the mother, was that the child X urinated into a water bottle. It is not entirely clear, but it would seem that that issue was raised with the Department of Family and Community Services (“the Department”).
In April 2015, the mother raised concerns with the father about the children spending time with the paternal grandfather. On the mother’s evidence, between April 2015 and October 2015, there was an agreement between the parties that the children would not be left in the care of the paternal grandfather.
It appears the parties took steps to explore the children’s sexualised behaviours with people qualified to advise them in relation to it. They consulted various medical practitioners and at least one child psychologist (with the children) between April and October 2015. As mandatory reporters, two of the medical practitioners notified the Department that there were concerns that the children had been exhibiting increased sexualised behaviours which could be consistent with their having been abused or exposed to abuse.
The children continued to see the father during the period between April and October 2015 and they spent time with him overnight each Monday and Tuesday. However, the children’s sexualised behaviours are said to have increased and thus, the mother began withholding the children from time with the father.
The mother contends that in around October 2015 the children’s sexualised behaviours had so increased and their disclosures to her were so alarming that she began recording her conversations with them.
On 19 October 2015, the mother suspended the father’s time with the children. To withhold the children from the father on that day, the mother withheld the children from school. It appears uncontroversial, as I read his Honour’s judgment, that the children did not return to school until 11 November 2015 when orders were made they attend.
The mother’s evidence is to the effect that by 18 or 19 October 2015, the child Y told her that the paternal grandfather and paternal uncle tickled his private parts and the paternal grandfather walked around the house naked. A report was made that day to the Department to this effect and that both children had been exhibiting increased sexualised behaviours. The report having been made, the New South Wales Police recorded that the paternal grandfather and paternal uncle were thus suspects for “sexual assault – indecent assault”. The paternal grandfather and paternal uncle deny behaving in an untoward fashion towards either child.
On 2 November 2015 the mother instituted parenting and financial proceedings in the Federal Circuit Court in Wollongong. Those proceedings were listed for mention on 10 November 2015, on which occasion the parties reached interim consent orders pending an interim hearing. Those consent orders provided for the children to live with the mother and communicate with the father via Skype. As I have already mentioned, orders were made for the children to recommence school and that the children not be permitted to come into contact with the paternal grandfather or paternal uncle.
On 8 December 2015 the proceedings came before the primary judge for interim hearing following which his Honour reserved judgment. It was not in issue at the interim hearing that the children had displayed sexualised behaviours nor that there was evidence they had made disclosures. The issue, as accepted by the primary judge, was what to make of those behaviours and disclosures and whether the children would be exposed to an unacceptable risk of harm if they were to spend time with the father.
His Honour delivered his reasons for judgment and made interim orders on 22 January 2016. Those orders were amended on 2 February 2016 pursuant to the slip rule. As already alluded to, the orders provided, inter alia, that the parents have equal shared parental responsibility for the children; that the children live with the mother and spend time with the father for two nights each week, as well as on special occasions. The orders also included a number of restraints against the parties including against recording conversations with the children concerning court matters, and against the children being unsupervised with the paternal grandfather and the paternal uncle.
His Honour’s analysis of the various notifications and investigations that have been initiated either by the parties or by agencies is found at paragraphs 42 to 46 of his reasons, which paragraphs are as follows:
42.The Department of Family and Community Services had considered the reports made to it by various sources and, in effect, screened the matter out. JIRT had become involved, but after investigation, took the matter no further. Ms [C] clearly warned the parents against trying to look for evidence for or against abuse, but to focus on dealing with the behaviours. The Independent Children’s Lawyer was concerned about the potential harm to the children and being subjected to repeated recorded interviews by the Mother. Ultimately, the Independent Children’s Lawyer submitted that, whilst the children should continue to live with their mother, they should immediately resume spending time with their father.
…
43.It is not the Court’s task at an interim hearing to establish whether the disclosures and sexualised behaviours actually indicate that the children have been abused, and if so, by named persons. Neither is it the Court’s task to examine why the children might be behaving in this fashion, and making these disclosures, even if they have not been abused in any way. That could not possibly be achieved without expert evidence, let alone within the parameters of an interim hearing.
44.Whether the unacceptable risk test continues to apply in circumstances where risk issues are clearly covered by ss. 60CC(2) and 60CC(2A) is not a matter for this Court to determine. For present purposes, this Court considers its task to be to determine whether, on the evidence before it, there is a need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Specifically, in the context of this case, the question is whether the children need to be protected from the risk of this harm emanating from their father. The evidence does not establish that risk. Moreover, it certainly does not establish that the risk is an unacceptable one, whilst noting that the legislation does not use that terminology. Nonetheless, it is a very useful concept.
45.These children unquestionably had a meaningful relationship with their father until his time and communication with them was restricted. One must be concerned as to whether that relationship could continue to be meaningful on the Orders proposed by the Mother. It might be possible, but would such change be necessary, given the drastic reconfiguration it would bring about in the children’s lives, so far as their father is concerned? On the evidence, the Court does not believe that the children’s relationship with their father does need to be so drastically reconfigured as the Mother proposes, and indeed the Court would have serious concern about the impact on the children of such a significant change.
46.The inconsistency between the Mother’s stated concerns and action, the shifting focus of her concerns, and her escalating behaviours are all matters for concern. She might well subjectively believe that the children’s disclosures and behaviours are attributable to something that the Father, or perhaps even members of his family have done. On the evidence before the Court, however, there is no objective basis for this.
His Honour ordered that the proceedings be transferred to the Family Court, in relation to which the proceedings are listed for directions on 24 March 2016, and recommended that the matter be included in the Magellan List. This is an appropriate matter to be included in that list.
On 4 February 2016, the mother filed her Notice of Appeal. On 8 February 2016, the mother filed her application for expedition of the appeal and supporting affidavit. She also filed an Application in a Case seeking a stay of Orders 3 and 4 of the orders of 22 January 2016. That application was heard by the primary judge on 11 February 2016, and on 22 February 2016 his Honour dismissed the mother’s application for a stay. It should be noted that at paragraph 20 of his Honour’s reasons for judgment in the stay he said:
20.The Court feels obliged to record, and indeed acknowledge, the concerns expressed by both Ms Longbottom and Ms Gillies about the evidence contained in the Mother’s Affidavit of 8 February 2016 in support of her stay. She refers to further examples of the children’s sexualised behaviours and to further disclosures. What the Mother does not tell the Court in her Affidavit is that, on the very day when judgment was handed down (22 January 2016), she made another report to JIRT which resulted in [the child Y] being reinterviewed and which resulted in JIRT once again reporting that the allegation was not substantiated. Moreover, the Mother was actually informed about this on 4 February but makes no reference to this in the material she puts before the Court.
The point of that paragraph is to include in the chronology that on the same day that his Honour made the orders of 22 January 2016 the mother made a further notification to the Department which prompted another JIRT investigation of the allegations that the children were at risk of harm and had made disclosures to that effect. What paragraph 20 of his Honour’s reasons record is although the mother was informed on 4 February 2016 that the JIRT investigation had not substantiated her allegations that information was not provided to the Court in her application in support of the stay. It should have been.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial and it provides a useful guide to the approach that might be taken in relation to expedition of an appeal. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.
As I move through the relevant provisions I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other cases, including other cases concerned with children who are said to be at risk of harm.
Sub-section (a) is concerned with whether the mother has acted reasonably and without delay in the conduct of the case. There is no doubt that in relation to the appeal and this application the mother has moved promptly and done all that is required to prosecute her appeal and her case for expedition. The application of the sub-section weighs in favour of an order for expedition and in this regard I adopt the submissions made by counsel for the mother in the application today.
Sub-section (b) is concerned with delay. It seems clear that unless the appeal is expedited it is possible that the proceedings at first instance will be heard before the appeal can be finalised. That circumstance is even more likely if, as might be anticipated, the case is included in the Magellan List. It is difficult to see how that circumstance, however, might sound in prejudice to the mother if an order for expedition is not made. This is because, as counsel for the father said, and which submission was adopted by the Independent Children’s Lawyer, the final hearing at first instance will enable findings to be made in relation to contested matters in a manner which, self-evidently, a hearing determined on the papers cannot.
Sub-section (c) concerns prejudice to the respondent in this case, the father. The father does not argue that expedition would occasion disadvantage or prejudice. The application of sub-section (c) is moot.
Sub-section (d) requires consideration of relevant circumstances which would justify this case being given priority to the detriment of other appeals including, as I have already said, appeals concerned with children who are said to be at risk of harm. This is a particularly important factor in this appeal given, as I have said earlier, it is an appeal in relation to interlocutory orders, albeit interlocutory orders which have a substantive effect.
Examples of what constitute a “relevant circumstance” are set out in r 12.10A(4)(a)–(g). Of particular relevance to this case is
sub-rule (4)(f) which provides that a relevant circumstance includes “whether the case involves allegations of child sexual, or other, abuse”, which of course this does.
The submissions made on behalf of the mother focus on the fact that that the children are at risk of harm in the father’s care. Thus, it is in their best interests that the appeal be expedited. In particular, the mother contends that the children’s sexualised behaviours have increased following the recommencement of their time with the father. I agree with the submission made by counsel for the mother that the allegations raised by the mother are serious and, ideally, her appeal should be dealt with as quickly as possible, but “as possible” is a relative concept and it is relative to the seriousness of the other cases that are also awaiting determination at appeal. That relativity is, of course, affected by the fact that the orders are interim orders, and the case at first instance which will result in a determination of the contested factual matters is well advanced, including the retention of Dr R as the Court’s expert and in relation to whom appointments are scheduled on 14 and 15 June 2016.
It is inferred, and as submitted by counsel for the father without contradiction, that a report from Dr R can be anticipated not long after the interviews take place. Even if the final hearing is not, in fact, able to take place shortly thereafter, one would reasonably anticipate that if in her recommendations Dr R comes to a view in relation to the risk of harm which is more consistent with the case advanced by the mother rather than the quite considerable number of people who have determined that alternative explanations for the children’s behaviour are available and determined against intervention of the type the mother has sought from this Court, then it will be open to her to place that evidence before the court on an urgent interim basis.
Finally, it is necessary to consider the grounds of appeal. All that needs to be said at this point is that the mother raises a number of challenges to his Honour’s reasons and the exercise of discretion. While the subject matter of the grounds are serious, it needs to be understood, as was discussed during exchanges this morning, the appeal is against a discretionary judgment. It raises questions of weight and is in relation to interlocutory orders. The barriers to appeals underpinned by challenges of that type are well known and need not be restated here. Suffice to say that the appeal does not appear to be presented on such strong grounds that I am persuaded this Court should dislocate other appeals so as to give it priority.
Conclusion
Thus, notwithstanding the matters that weigh in favour of expedition, in my view the case for this appeal to be given priority has not been made out, and the application for expedition should be dismissed. I will order accordingly.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 February 2016.
Associate:
Date: 30 March 2016
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